Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco City & County Super. Ct. No. 197813
Lambden, J.
Defendant Zeiad Salman appeals from the trial court’s judgment after jury trial finding him guilty of rape of an unconscious person (Penal Code, § 261, subd. (a)(4)) and sentencing him to the upper term of eight years in state prison. Defendant argues that the trial court erred by failing to instruct the jury regarding his mistake of fact defense or defining the term “unconscious” in the instructions given, and by sentencing him to the upper term. We affirm the judgment, except that we vacate the sentence and remand for further proceedings pursuant to People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).
BACKGROUND
Prosecution Evidence
S.D.’s Testimony
On March 12, 2004, S.D., a 17-year-old high school student, went with friends to a party in San Francisco, where she drank three bottles of beer and five or more cups of a punch made from tequila, rum, and fruit juice on an empty stomach. Then, continuing to drink the liquor-laced punch in the car, S.D. went with her friends to the residence of a friend, Bashar Hattar, to attend his 21st birthday party.
S.D. was very drunk by the time she got to Hattar’s residence around 11:00 p.m. She sat in the living room for about 20 minutes, but had a very bad headache, was speaking in a “very sloppy” manner, and felt “kind of unstable.” Her friends suggested that she lie down and rest, and helped her upstairs to Hattar’s bedroom, where she lay down on a bed, dressed except for her shoes. Her friends left her in the room and closed the door; S.D. recalled that she then “passed out,” meaning that she “fell asleep from too much drinking.” She did not get up to leave the room for any purpose, did not go to the bathroom, and did not remember being moved or taken out of that room.
S.D. woke up in a different room to find a man on top of her putting his penis in her vagina. He seemed “very old,” had a big stomach, light hair, and was slightly bald. Her pants and boxer shorts were off, but not her thong underwear, and her shirt and bra were lifted up, exposing her breasts. She pushed the man away, unlocked the door, fell on the hallway floor, and started screaming. Her friends recovered her pants and boxers from the room. At trial, S.D. thought defendant was the man who was on top of her when she woke up that night.
Other Eyewitness Testimony
S.D.’s friend Jesse V. testified that on the night of the incident he was upstairs in Hattar’s residence. He heard a woman’s “pretty faint” moan and, 30 seconds to a minute later, heard another moan. He described each as a “sexual noise.” Three to five seconds after the second moan, he saw S.D. burst out of one of the upstairs rooms and fall on all fours partly in the room’s doorway, hysterical. He saw someone’s hand from inside the room “kind of push her out of the doorway,” and then saw the door shut. Jesse V. gained entry to the room and fought with a man inside, who he identified at trial as defendant.
R.O., also a high school student at the time of the incident, testified that she was in Hattar’s living room when she heard “this shrieking, like, yelling, really loud.” She ran upstairs to find S.D. half naked and terrified. R.O. banged on the door of the room S.D. had exited and demanded S.D.’s pants and underwear. A man in the room threw out S.D.’s pants and one of her panties. R.O. brought these to S.D., who was crying so hard she was having difficulty breathing.
Other Prosecution Witnesses
A paramedic called to the scene on the night of the incident testified that he smelled alcohol when he talked to S.D. She told him she had been raped. She stated that she had woken up to find her shirt and bra at her neck, her breasts exposed, only her thong underwear on her lower body, and an adult male vaginally penetrating her with his penis. She said she had not felt her clothes being removed.
A doctor testified that she examined S.D. that same evening at San Francisco General Hospital. She found some redness near S.D.’s hymen, which could have been caused by consensual or nonconsensual intercourse, or other medical conditions, or simply could have been normal.
Criminalist Patrick Paton testified that he examined penile swabs taken from defendant, and vaginal, oral, rectal, and breast swabs taken from S.D. for biological material, such as amylase, that could be tested for DNA. Amylase is a chemical used by the body to break down food and is “present in urine, feces, semen, vaginal secretions, [and] breast milk. But the concentration in saliva is significantly higher than any other body fluid.” As far as which body fluid has the highest amount of amylase, “it varies from person to person. You can’t really make a generalization. Everybody is different.” Furthermore, “we can never conclusively say that amylase that’s present is actually from saliva.” Instead, “we can either say that the amylase was probably from saliva or possibly from saliva. The test can also be inconclusive or negative.” Paton found amylase on defendant’s penile swabs, “which showed the possible presence of saliva,” and no sperm cells. He also found amylase on S.D.’s breast swabs “that suggested the probable presence of saliva.”
Criminalist Julie Renfroe conducted forensic DNA tests on the penile and reference oral swabs taken from defendant, and the breast and reference oral swabs taken from S.D. She found S.D.’s DNA profile in the material taken from the penile swabs, but had no way to determine the material’s source, which could have been S.D.’s saliva or vaginal fluid. Renfroe found DNA consistent with a mixture of defendant and S.D.’s DNA profiles on the right breast swab taken from S.D. She found a mixture of DNA, to which S.D. and defendant were potential contributors, on the left breast swab taken from S.D.
Defense Evidence
Bashar Hattar
Bashar Hattar testified that he was hosting a party at his residence when defendant, who was a roommate of Hattar’s, came home at approximately 11:00 or 11:30 p.m. and went directly to his bedroom upstairs. It was defendant’s habit before going to sleep to retire to his room, undress down to his boxer shorts, get into bed and watch television, having a glass of wine and sometimes nuts as well. His bedroom was adjacent to both Hattar’s bedroom and to the bathroom. On the night of the incident, Hattar brought a glass of wine to defendant’s room and found him in his boxers and watching television.
Hattar was unavailable to testify at trial. Instead, his testimony in a videotaped conditional exam was played in redacted form for the jury.
S.D. arrived at the residence about 10 or 15 minutes later. Hattar could tell that she was drunk because she was “kind of wobbly,” had “droopy eyes,” “red cheeks,” was stumbling as she walked, and was “drooling” as she spoke. These were the same physical symptoms he had seen before when she was drinking. After about five minutes, S.D., nauseated and with a bad headache, wanted to lie down and go to sleep. Hattar and a friend helped her upstairs to Hattar’s bedroom, where they placed her in his bed, clothed except for her shoes. Defendant’s bedroom door was closed when Hattar left the room.
About 10 minutes later, Hattar heard a scream from upstairs. He rushed upstairs and saw his bedroom door was open and defendant’s was half shut. S.D. was crying and screaming, wearing a shirt, underwear, and no pants. Defendant was standing in his room wearing only his boxer shorts. S.D.’s pants were in the hallway.
Dr. Gottlieb’s Testimony
Dr. Ken Gottlieb, a psychiatrist, testified for the defense on the acute effects of alcoholic intoxication on memory, which could result in a “blackout.” He described a “blackout” caused by intoxication as a complete absence of memory, “a phenomenon where the―let us say the following day after an acute bout of intoxication, an individual literally has a period of time, or several periods of time, blacked out from the period where they were intoxicated. [¶] Now, as distinct from not being able to remember well or forgetting some details, I am talking about a complete absence. It’s like somebody snipped the tape and there is nothing there.” He later explained that “it’s not truly that they forget, but they never remember to begin with because it was never laid down. And that’s what the phenomenon of a blackout is. It is awakening, say, the next day and recognizing, ‘I’ve got no memory for this part of time.’ And no amount of hypnosis or anything else will ever bring it back because it never got laid down in the first place.”
Gottlieb was given a hypothetical very similar to S.D.’s drinking pattern on the night of the incident, and asked if it would potentially impact memory formation. He said it “would more likely lead to a blackout, yes.” Someone who has an alcoholic blackout, “they are behaving in a, let’s say, drunk but otherwise normal way. They are going about whatever they are doing.” Other people cannot tell that a person is having a blackout.
It is possible for a person who is sufficiently intoxicated to pass out and then not feel themselves carried out of one room to another, and not notice their clothes being taken off, and not wake up until the person is vaginally penetrated. However, a sufficiently intoxicated person who suffers from a memory “blackout” also could fail to remember getting up from a room, walking out of it, walking to a bathroom and using it, then walking to another room, getting into bed with another person, and engaging in sexual activity. Both scenarios were medically plausible, and Gottlieb could not select one as more so than the other.
Furthermore, when intoxicated, “people are well known to act more freely and with greater abandon[,] sometimes with a sense of irresponsibility” than when sober. It would be consistent with alcohol’s effect on judgment for an intoxicated person to engage in sexual activity with a stranger with whom they would not necessarily have sex when sober.
Jury Verdict and Sentencing
As we have stated, defendant was found guilty by the jury of raping an unconscious person and sentenced to the upper term of eight years in state prison. He then filed a timely notice of appeal.
DISCUSSION
I. The Trial Court’s Refusal to Instruct the Jury on Mistake of Fact
Defendant argues that the trial court committed prejudicial error when it refused his request for a jury instruction on his mistake of fact defense, thereby violating his rights under the Fourteenth and Sixth Amendments of the federal Constitution. Defendant contends reasonable inferences from certain circumstantial evidence required the instruction. His argument lacks merit.
Generally, “[i]t is well settled that a defendant has a right to have a trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation]―evidence sufficient for a reasonable jury to find in favor of the defendant [citation]―unless the defense is inconsistent with the defendant’s theory of the case [citation]. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .’ ” People v. Salas (2006) 37 Cal.4th 967, 982. In other words, “a trial court must give a requested instruction only when the defense is supported by . . . evidence sufficient to ‘deserve consideration by the jury,’ not ‘whenever any evidence is presented, no matter how weak.’ ” (People v. Williams (1992) 4 Cal.4th 354, 361 (Williams).)
Related to the trial court’s instruction to the jury on the rape of an unconscious woman, defendant requested an instruction on mistake of fact. Defense counsel argued to the trial court that the instruction was necessary because if S.D. was “acting in a way that would indicate that she was consensually engaging in this activity, then his mistake as to her consciousness would be honest and reasonable.” The trial court denied defendant’s request, finding that “there is no substantial evidence to warrant this instruction of 3406 proposed by the defense,” relying on Williams, supra, 4 Cal.4th 354.
Defendant requested an instruction pursuant to CALCRIM No. 3406, as follows:
In Williams, the California Supreme Court considered whether or not defendant was entitled to an instruction pursuant to People v. Mayberry (1975) 15 Cal.3d 143, which held that a defendant’s reasonable and good faith mistaken belief that a person consented to sexual intercourse was a defense to a rape charge. (Id. at p. 155.) The Williams court stated that the “Mayberry defense” has two components, one subjective and one objective: “The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victim’s equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendant’s mistake regarding consent was reasonable under the circumstances.” (Williams, supra, 4 Cal.4th at pp. 360-361, fn. omitted.)
Defendant does not challenge the application of such subjective and objective components to his case. Rather, he argues that, unlike the circumstances presented in People v. Williams, supra, 4 Cal.4th 354, there was substantial evidence that S.D. and he engaged in nonconsensual, but not forcible, sex, requiring a mistake of fact instruction regarding S.D.’s consciousness.
First, noting that S.D. initially laid down in Hattar’s bedroom, to which defendant’s bedroom was adjacent, and that S.D. testified that she had not urinated since she started drinking at 6:00 p.m., defendant contends that it can reasonably be inferred that S.D., in a blackout state, used the upstairs bathroom, and then mistook defendant’s room for Bashar’s and wandered into it. In other words, during the 10 minutes between the time Hattar left the drunk, stumbling, nauseated, achy-headed S.D. lying fully clothed in his bed and the time he found her on the floor outside defendant’s bedroom half dressed and screaming, S.D., without remembering that she did so, accidentally walked into defendant’s bedroom, acted in a manner that caused defendant to reasonably believe she was conscious and willing to engage in sexual activity, and engaged in that activity before she suddenly realized defendant was penetrating her.
Defendant’s theory amounts to speculation and conjecture about several bits of circumstantial evidence. There is no direct evidence to support his theory, nor is it reasonable to infer from the evidence cited that defendant mistakenly believed S.D. was conscious when he penetrated her for several reasons.
First, there was no evidence that defendant held such a mistaken belief about S.D.’s consciousness. Defendant did not testify, nor was any circumstantial evidence presented which suggested his actual state of mind. This alone seriously undermines his theory.
Second, defendant’s theory relies implicitly on his contention that S.D. suffered an alcohol-induced “blackout” during the 10 minutes in question, which can only be based on Gottlieb’s expert opinion testimony. However, Gottlieb’s definition of a “blackout” has little to do with S.D.’s specific circumstances. According to Gottlieb, a “blackout” is a person’s inability to remember later actions the person had previously taken while in a conscious, intoxicated state. This is not the same as a person emerging from some sort of unaware state and, in that moment, suddenly becoming aware of what is happening to and around her and acting accordingly. All the evidence, such as the testimony from S.D., Jesse V., R.O., and Hattar, indicates that this is what happened. Thus, there was no evidence to support the theory that S.D. entered defendant’s bedroom, seemingly conscious and willing to engage in sexual activity, without being aware of it.
Gottlieb repeatedly referred to blackouts of memory about actions taken the previous day. In one instance he did state, “when such [intoxicated] individuals ten minutes later are asked about what they did ten minutes before, or they are given things to remember, they don’t remember them. They don’t remember them five minutes later.” This might be cited to argue that S.D.’s accounts to the paramedic and at trial was somehow affected by a “blackout”; however, it has nothing to do with the fact that, after being unaware of what was happening, she suddenly realized defendant was penetrating her and rushed from the room, half dressed and hysterical.
Defendant argues in his opening brief that he “did not argue that [S.D.] was not unconscious. Rather, his position was that her behavior while intoxicated was such as to lead him to reasonably and in good faith believe that she was not intoxicated and was therefore not ‘unable to resist’ because she was unconscious.”
Regardless, Gottlieb testified that someone who has an alcoholic blackout continues to behave in a “drunk but otherwise normal way. They are going about whatever they are doing.” This contradicts defendant’s theory that within 10 minutes S.D., despite her nausea, headache, and physical unsteadiness, appeared before a stranger seemingly conscious and willing to have sex with him, engaged in sexual activity, and then abruptly had a change of heart.
Third, defendant contends that S.D. got up and used the bathroom upstairs, then mistakenly wandered into defendant’s bedroom. This cannot be reasonably inferred from any evidence. Defendant points to S.D.’s testimony that she did not urinate during the several hours when she was drinking. It is a long and speculative leap from this testimony to defendant’s theory, which falls apart as a result.
Fourth, defendant’s construction of the criminalists’ testimony is unpersuasive. Defendant suggests the testimony provides substantial evidence of S.D.’s participation in sexual activity. He points to Paton’s testimony that the penile swabs taken from defendant “revealed the possible presence of saliva,” and that the amylase found on the swabs, while present in urine, feces, semen and vaginal secretions, is in a significantly higher concentration in saliva. However, defendant’s argument ignores Paton’s testimony that, as far as which body fluid has the highest amount of amylase, “it varies from person to person. You can’t really make a generalization. Everybody is different.” Defendant also contends Renfroe’s testimony that S.D.’s DNA could have gotten on defendant’s penis from S.D.’s mouth “circumstantially suggests an act which [defendant] could reasonably and in good faith have understood as that of a conscious person.” However, Renfroe made clear that she could not determine the source of the DNA. Defendant’s contentions are based on little more than theoretical possibilities, and “[a] theoretical possibility is not the equivalent of substantial evidence.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 646.)
Fifth, defendant contends Jesse V.’s testimony about the two moans he heard upstairs was a basis for the jury to “infer that the moans were [S.D.’s] and that they indicated her participation in the sexual activity.” Jesse V.’s testimony is far too meager to support defendant’s theory, which requires both that one infer from this testimony that S.D. made the sounds Jesse V. heard and that she did so in some manner that suggested to defendant that she was conscious. This too is little more than speculation.
Defendant’s theory also fails for lack of substantial evidence that S.D. acted in any way that could have caused him to mistakenly believe she was consenting to sexual activity. Defendant argued to the trial court, and argues on appeal, that his mistake about S.D.’s consciousness was related to such actions. However, even if the amylase and DNA came from S.D.’s mouth and she did moan twice, it simply does not follow that such seemingly consensual acts can be reasonably inferred from these facts. To the contrary, such inferences are plainly unreasonable when considering that S.D. did not know defendant, was in an obviously drunken and distressed state, and that only 10 minutes transpired between the time Hattar left S.D. and he and the others heard her scream.
Finally, even if the trial court erred in failing to give the mistake of fact instruction, it would be harmless, whether evaluated under the federal or state standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) The jury’s guilty verdict necessarily indicates it found defendant knew S.D. was unconscious of the nature of the act involved. Given this finding, it undoubtedly would have rejected defendant’s mistake of fact defense.
II. No Sua Sponte Duty to Define the Term “Unconscious”
Defendant also argues that the trial court “committed prejudicial error by failing to sua sponte define ‘unconscious’ in instructing the jury pursuant to CALCRIM 1003.” This argument also lacks merit.
The trial court has a sua sponte duty to instruct the jury with definitions of material terms that have a specific legal meaning. (People v. Estrada (1995) 11 Cal.4th 568, 574.) However, “[a]s a general rule, ordinary words do not require definition; they are presumed to be understood by the jurors. [Citations.] The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction [citation], and is ordinarily sufficient when the defendant fails to request further amplification. [Citations.] If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language.” (People v. Jones (1971) 19 Cal.App.3d 437, 447; accord, People v. Cantrell (1992) 7 Cal.App.4th 523. 543.) “ ‘A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning.’ ” (People v. Griffin (2004) 33 Cal.4th 1015, 1023.)
Defendant, having not requested further instruction on the term “unconscious” at trial, argues on appeal that the term “unconscious” is a technical term “peculiar to the law” that required a sua sponte definition. Defendant argues that “[t]he relevant, critical language present in the definition of unconscious and missing from the colloquial dictionary definition, is that a person can perform acting [sic] without being conscious of such actions because he or she is suffering from a state of voluntary intoxication, and that unconsciousness does not require that a person be incapable of action or movement.”
Defendant’s argument is unpersuasive for at least two reasons. First, among the meanings included in defendant’s dictionary definition is that “unconscious” means “occurring below the level of conscious thought.” It is evident from this definition that the word’s colloquial meaning encompasses the possibility that a person can act without being aware that they are doing so.
Second, defendant’s proffered definition of “unconscious” is already conveyed by CALCRIM 1003, which provides that the victim must be “unable to resist because she was unconscious of the nature of the act,” and that “defendant knew that the woman was unable to resist because she was unconscious of the nature of the act.” (Italics added.) This limiting language indicates that one can be “unconscious” without being incapable of action or movement. (See People v. Cook (2006) 39 Cal.4th 566, 600 [trial court did not have a sua sponte duty to instruct on the definition of “unconscious” because the jury instruction, CALJIC No. 8.47, by its own terms precluded “the possibility that the jury would have believed legal unconsciousness required an incapacity to move or act”].)
Defendant emphasizes the last line of CALCRIM 1003 (“[a] woman is unconscious of the nature of the act if she is unconscious or asleep” implying it has some special significance in defining the term. We do not agree. Rather, it simply points out specific examples of “unconsciousness.”
Furthermore, any purported error by the trial court in not instructing on the meaning of “unconscious” was undoubtedly harmless under the federal or state standard. As the Attorney General points out, if the jury, mistakenly believing one must be immobile to be “unconscious,” concluded that S.D. moved about under her own power as defendant argues, it would have acquitted defendant. Defendant’s reply that the absence of such an instruction undermined his mistake of fact defense is not persuasive, since, as we have already discussed, that defense lacked evidentiary support.
III. Sentencing
Defendant argues that the trial court imposed an upper term sentence in violation of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], requiring reversal. Defendant is correct. Therefore, his sentence must be vacated and the matter remanded for further proceedings.
In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court held that a Washington State court violated the rule previously announced in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), that “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” (Blakely, at p. 301.) In reaching this conclusion, the court clarified that, for Apprendi purposes, the “ ‘statutory maximum’ ” is “not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Blakely, at pp. 303-304.)
Subsequently, the California Supreme Court, in People v. Black (2005) 35 Cal.4th 1238 (Black I), held that under California’s determinate sentencing law (DSL), “the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi, Blakely, and [United States v.] Booker [(2005) 543 U.S. 220].” (Black I, at p. 1254.)
In January 2007, the United States Supreme Court issued Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], in which it concluded that the DSL violated a defendant’s right to jury trial because “under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, at p. ___ [ 127 S.Ct. at pp. 863-864.) However, a trial court may determine the fact of a defendant’s prior conviction. (Id. at p. ___ [127 S.Ct. at p. 860].)
In July 2007, the California Supreme Court issued People v. Black (2007) 41 Cal.4th 799 (Black II), in which it determined a number of issues in light of Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. It held “that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, at p. 812.) The court also held that one such aggravating circumstance could be a trial court’s finding, by a preponderance of the evidence standard, that a defendant had numerous prior convictions. (Id. at pp. 819-820.)
Moreover, the California Supreme Court, in Sandoval, supra, 41 Cal.4th 825, issued on the same day as Black II, supra, 41 Cal.4th 799, determined that the denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman, supra, 388 U.S. 18. (Sandoval, at p. 838.) It explained how trial courts are to proceed with resentencing in certain cases which require reversal pursuant to Cunningham. As stated in Sandoval, after Cunningham was issued the California Legislature amended the DSL to establish constitutional sentencing procedures in light of that opinion. Our Supreme Court found that “[i]t is unclear whether the Legislature intended the recent amendments of the DSL to apply to resentencing hearings in cases like the present one,” (Sandoval, at p. 845) which, like the case before us, involved a trial court’s imposition of an upper term sentence prior to Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856] and the Legislature’s changes to the DSL. (See Sandoval, at p. 837.) Our Supreme Court determined trial courts essentially should follow the amended DSL guidelines in such cases. (Id. at pp. 843-852.)
At the sentencing hearing for defendant, the trial court found that there were no mitigating circumstances. As for aggravating circumstances, the court found:
“[T]he crime involved great violence, bodily harm, threat or bodily harm or acts disclosing a high degree of cruelty, viciousness and callousness. . . . And I find his actions to be extreme degree or high degree of cruelty and callousness. And so, therefore, I find the aggravated circumstance of [California Rules of Court, rule] 4.421(a)(1).
“The court further finds, as I have already stated, the victim was vulnerable, not only because of her age but because of her condition at that time. And the defendant was at the time 46 years of age, and he considerably outweighed the victim at that time. I find rule 4.421(a)(3) in aggravation.
“Furthermore, the defendant engaged in violent conduct. Rape is a violent conduct. And, therefore, the court finds rule 4.421(b)(1).”
The trial court’s stated reasons for imposing the upper term sentence were neither based on facts found beyond a reasonable doubt by a jury, nor related to prior convictions. Therefore, the trial court’s imposition of an upper term sentence violated defendant’s Sixth Amendment right to a jury trial as held in Cunningham, supra, 549 U.S. at pages ___ [127 S.Ct. at pp. 863-864].
The Attorney General makes two arguments in favor of the trial court’s imposition of the upper term sentence, neither of which is persuasive. First he argues defendant forfeited his claim by failing to object on constitutional grounds before the trial court. However, at the time of defendant’s August 2006 sentencing, Black I, supra, 35 Cal.4th 1238, was governing law. Any objection would have been futile and, therefore, the issue has not been forfeited. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)
Second, the Attorney General argues that the trial court had the authority to impose the upper term sentence because of defendant’s prior arrests and misdemeanor convictions. However, nothing in the record shows the trial court relied on these matters to set the upper term sentence, and neither Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], nor Black II, supra, 41 Cal.4th 799, allow us to infer from references elsewhere in the record regarding a defendant’s past “crimes” a finding of a “fact of prior conviction” aggravated circumstance. To the contrary, the court’s stated reasons for the upper term sentence, as we have indicated, were unrelated to defendant’s prior arrests and convictions. Accordingly, we vacate defendant’s sentence and remand the matter for further sentencing pursuant to Sandoval, supra, 41 Cal.4th 825.
DISPOSITION
Defendant’s judgment of conviction is affirmed. His sentence is vacated and this matter is remanded for further sentencing proceedings consistent with this opinion. Following resentencing, the clerk of the superior court is directed to prepare an amended abstract of judgment, and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: Kline, P.J., Haerle, J.
“The defendant is not guilty of rape of an unconscious woman [if] he did not have the intent or mental state required to commit the crime because he reasonably did not know a fact or reasonably and mistakenly believed a fact.
“If the defendant’s conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit rape of an unconscious woman.
“If you find that the defendant believed that [S.D.] was conscious at the time he engaged in sexual intercourse with her and if you find that belief was reasonable, he did not have the mental state required for rape of an unconscious woman.
“If you have a reasonable doubt about whether the defendant had the mental state required for rape of an unconscious woman, you must find him not guilty of that crime.”